Family Law Implications
1- When you marry, any valid Will made prior to your date of marriage is invalidated, unless it was made in contemplation of your upcoming marriage. Here are a few of the disadvantages:
2- Divorce, on the other hand, does not invalidate a pre-existing valid Will. Your former spouse may nevertheless be able to claim a share of your estate unless your previous Will is updated to reflect your change in marital status.
3- If you have minor children, you can specify in your Will how they can be cared for and provided for by your estate, upon your passing, as well as who is to be appointed as their guardian until the children have reached adulthood or become independent. If both you and your spouse die at the same time, your guardian of choice can look after your children, so long as they are dependent. This choice, as specified in a valid Will, is also taken into consideration in a court’s final decision with respect to guardianship. You can also designate a property guardian or trustee to manage the wealth you leave behind for the benefit of your children until they reach adulthood or become independent. If only one of the spouses passes away and there are minor children left behind, the surviving spouse will need to apply to the court to be an Estate Trustee without a Will.
4- You must also keep in mind the differences that exist between the treatment of common law spouses and married spouses when one of the parties dies without a Will.
5- A common law spouse does not have the same rights to share in the assets of the deceased spouse, as a married spouse would. Unless there is a valid Will in place specifying otherwise, a common-law spouse may end up with no property after the passing of his or her partner.
6- When there is no valid Will in place, a surviving married spouse in the Province of Ontario is entitled to the first $200,000.00 of the deceased spouse’s estate assets, with the remainder of the estate being split into equal shares between the child(ren) and the surviving spouse.
7- Pursuant to section 4(2) of the Family Law Act, property other than a matrimonial home, which was acquired by gift or inheritance from a third person after the date of the marriage, is excluded from the spouse’s net family property at separation.
- However, income from such property may be included in the spouse’s net family property, unless the donor or testator expressly states in his or her Will that such income is to be excluded from the spouse’s net family property.
- Practically, this means that property gifted to or inherited by your child upon your passing, through a valid Will, may be protected by being specifically excluded from your child’s net family property, thus preventing your child’s former spouse from sharing in on the value of this gifted or inherited property post-separation.
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